Ontario Superior Court of Justice
Court File No.: CV-22-96-00
Date: 2025-04-07
Between
Rainbow Alliance Dryden and Caitlin Hartlen
Plaintiffs
Counsel: D. Judson and P. Howie
-and-
Brian Webster
Defendant
Counsel: J. Kitchen and J. Wells
Heard: Costs Submissions in writing
Justice: H. M. Pierce
Reasons for Costs in Actions and Motions for Summary Judgment
[1] The plaintiffs were wholly successful in securing summary judgments against Mr. Webster in two related but distinct actions for defamation. The court awarded each plaintiff general damages of $75,000.00 plus aggravated damages of $20,000.00 each. The total damages awarded against the defendant in both actions was therefore $380,000.00.
[2] The court has now received written submission from all parties with respect to costs. These reasons address those submissions.
[3] The plaintiffs claim costs between substantial and full indemnity scales. Since Justice Nieckarz already awarded costs of $10,000.00 to the plaintiffs in the anti-SLAPP motions argued before her, those costs are not claimed here.
[4] With respect to the Rainbow Alliance Dryden action, the plaintiffs seek substantial indemnity costs of $37,500.00 inclusive of fees, disbursements and HST while the plaintiffs in the Crichton action seek substantial indemnity costs of $30,500.00 inclusive of fees, disbursements and HST.
[5] The defendant submits that costs should be limited to a partial indemnity scale prior to the offers to settle and either partial or substantial indemnity costs thereafter of $15,000.00 for each action. The defendant contends there was no egregious or reprehensible conduct that warrants elevated costs.
[6] Rule 49.10(1) of the Rules of Civil Procedure deals with offers to settle. It provides that:
Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,
and the plaintiff obtains a judgment as favourable or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date unless the court orders otherwise.
[7] On July 11, 2024, the plaintiffs in each action offered to settle their respective claims for the sum of $15,000.00 in general damages with each party bearing their own costs. These constituted Rule 49.10 offers in that they were outstanding at the commencement of hearing. Unwisely, the defendant did not accept them. The plaintiffs obtained judgments more favourable in the summary judgment motions.
[8] The defendant submits that the plaintiffs’ costs should be fixed on the partial indemnity scale to the date of the offers and substantial or partial indemnity thereafter. The defendant submits that the appropriate amount of costs in each action is $15,000.00 (or to each plaintiff in the amount of $7,500.00). As the defendant has not filed a bill of costs, there is no evidence as to what the reasonable expectations of the losing party might be.
[9] The defendant submits that these cases were no more complex than any other defamation case and much less complex than other cases involving highly technical facts, legal concepts, or constitutional issues. This overlooks the particularity of notice and pleading requirements for defamation actions. Cases with the complexity the defendant describes are not likely to be heard by way of summary judgment motions.
[10] Because Mr. Webster did not identify himself in his posts, the plaintiffs were required to move for third party disclosure to identify and serve the defendant. This increased the costs. It is not an answer to say that Mr. Webster undertook some proceedings when he was self-represented. The costs incurred by the plaintiffs to respond to ill-considered proceedings are just as real as those incurred when the defendant is represented by counsel.
[11] These cases involved three expert witnesses, lengthy motion records filed by each party and detailed legal submissions including those filed by the intervenor, Egale. The parties and their witnesses were cross-examined and transcripts filed. The reasons for judgment comprised 57 pages.
[12] Mr. Webster contends that this case is no more important to the plaintiffs and the “drag community,” than it is to his and other like-minded individuals’ right to free expression. I do not agree. The two interests are not comparable.
[13] The defendant’s inference that the individual plaintiffs, in their drag persona, were grooming children for sexual abuse not only defamed them but by implication, it impugned the reputations of all drag performers who read to children. The involvement of Egale as an intervenor is indicative of the drag community’s concern about this case. The defendant’s right to free expression does not extend to defaming others, an effect that was obviously intended and achieved by Mr. Webster.
[14] Costs are in the discretion of the court. In these cases, the court awarded aggravated damages in addition to general damages to punish the defendant’s egregious conduct and as a deterrent to others. In my view, this is an exceptional case where costs incurred before the offer to settle should be ordered on a substantial indemnity scale. To award partial indemnity costs would reduce the full force of the damage award, leaving the plaintiffs to pay their counsel out of pocket.
[15] Lead counsel for the plaintiffs, Mr. Judson, has 8 years’ experience, while supporting counsel, Mr. Howie, has practiced for 9 years. Their hourly rates range between $250.00 and $275.00 per hour, a very reasonable rate. The plaintiffs’ bills of costs are also reasonable. Certain economies were achieved by litigating the claims together. I note that there is no claim for the cost of expert reports.
[16] The plaintiffs in the Rainbow Alliance Dryden proceeding shall have their substantial indemnity costs from the defendant fixed at $37,500.00 inclusive of fees, disbursements and HST.
[17] The plaintiffs in the Crichton proceeding shall have their substantial indemnity costs from the defendant fixed at $30,500.00 inclusive of fees, disbursements and HST.
“original signed by”
H. M. Pierce
Released: April 7, 2025
Cited Cases
Legislation
Case Law
(None cited in this decision)